A Demand for International Criminal Justice

For
decades impunity has prevailed – and been allowed to prevail – in Israel and
the occupied Palestinian territory (oPt). Despite significant evidence
indicating the widespread perpetration of international crimes, not once has a
senior military or government official been investigated and prosecuted in
accordance with the obligations of international law. This pervasive impunity
has resulted in systematic violations of international law, and the continuing
suffering of civilian populations.

Israel’s
27 December 2008 – 18 January 2009 offensive on the Gaza Strip is testament to
this reality. During the 23 day offensive, international humanitarian law (IHL)
was systematically violated and civilians and civilian infrastructure were
directly targeted; 83% of the dead were civilians, the so-called ‘protected
persons’ of international humanitarian law.

The
Report of the UN Fact Finding Mission on the Gaza Conflict acknowledged this
reality, noting that “the prolonged situation of impunity has created a justice
crisis in the Occupied Palestinian Territory that warrants action.” To this
end, and in keeping with the requirements of international law, the Mission’s
recommendations focused on the pressing necessity of criminal accountability.

To-date,
effective investigations – conducted in accordance with the requirements of
international law – have not been conducted either by Israel or the Palestinian
authorities. This conclusion was recently confirmed by the UN Committee of
Independent Experts. In particular the Committee noted that that no criminal
procedures had been initiated on the Palestinian side, and that “there is no
indication that Israel has opened an investigation into the actions of those
who designed, planned, ordered and oversaw “Operation Cast Lead”.”

Procedures
on the Israeli side have been characterised by an unwillingness to conduct genuine
investigations and prosecutions. The Israeli investigative system suffers from
fundamental flaws which render the effective pursuit of justice impossible. Of
particular concern is: the reliance placed on ‘operational debriefings’; the
excessively narrow scope of investigations; the decisive role of the Military
Advocate General (who is implicated in a number of the alleged crimes) in the
decision to open or close an investigation; and the lack of adequate civilian
supervision (characterised by the margin of appreciation awarded by the Supreme
Court to the decisions of the Military Advocate General, and the Attorney
General).

Only
47 military police investigations – subject to the abovementioned flaws – have
been opened. These have resulted in only one conviction for the theft of a
credit card, and the further indictment of three individuals. While those
opened investigations fail to meet international requirements, the overwhelming
majority of allegations have simply been ignored. In violation of its obligations
under customary international humanitarian law, Israel has proven itself
unwilling to conduct genuine investigations and prosecutions; it must be unequivocally concluded that no effective
mechanisms are available on the Israeli side.

Palestinian procedures have not resulted in any form of
accountability, and have failed to ensure victims’ legitimate right to an
effective judicial remedy, in violation of General Assembly Resolution
A/Res/64/10. In light of the reality of procedures initiated to date and the
practicalities of the situation (including a divided judicial and political
system) it must be unequivocally concluded that no effective mechanisms are
available on the Palestinian side.

Based
on our organisation experience we believe that this failure is not an anomaly,
but rather is in keeping with longstanding previous experiences. Effective
domestic investigations and prosecutions are an impossibility. All Parties are
unwilling or unable to fulfil the obligations of customary international law,
and General Assembly Resolution A/Res/64/10.

Justice
is unattainable within these systems.

Given
this reality, and as recommended in the Report of the UN Fact Finding Mission,
it is imperative that immediate urgent recourse be had to mechanisms of
international criminal justice. Those suspected of committing the most serious
crimes of the international community cannot continue to be granted impunity.
Victims’ rights cannot continue to be denied.

This
is an international responsibility: “To deny modes of accountability reinforces
impunity, and tarnishes the credibility of the United Nations and of the
international community.” This tarnished credibility is evident consequent to
the UN Secretary-General’s repeated failure to fulfil his duty to report on the
status of domestic investigations, “with a view to the consideration of further
action”.

As
representatives of Palestinian and Israeli civil society we state clearly that
political processes cannot continue to be allowed to displace the rule of
international law and fundamental human rights, and:

·Condemn
the failure to initiate effective investigations and prosecutions into all
alleged violations of international humanitarian law and international human
rights law;

·Request
that the UN Security Council, acting under Chapter VII of the UN Charter,
ensure accountability through the legal or other tools available to the
international community, including referring the situation in Israel and the
occupied Palestinian territory to the International Criminal Court;

·Remind
all States of their obligation to
investigate and prosecute all those
suspected of perpetrating grave breaches of the Geneva Conventions, in
accordance with the principle of universal jurisdiction;

Request that the Government of Switzerland, as
depository to the Geneva Conventions of 1949, urgently convene a conference of
the High Contracting Parties with the aim of ensuring respect for the
Conventions in Israel and the oPt, in keeping with, inter alia, General Assembly Resolution A/Res/64/10